June 27, 2008

1. I did an hour-long call-in show on Wisconsin Public Radio at 6 a.m. this morning. You can stream the audio here. We had lots of callers — and in case you're wondering how things are in Wisconsin — every single one supported gun rights.

2. Here's lawprof Randy Barnett in the Wall Street Journal, making some predictions. 1. The Second Amendment will be applied to the states via the 14th Amendment. (This issue didn't arise in the D.C. case, but "Justice Scalia acknowledges that the 39th Congress that enacted the 14th Amendment did so, in part, to protect the individual right to arms of freedmen and Southern Republicans so they might defend themselves from violence.") 2. "[M]ost existing gun regulations falling short of a ban will eventually be upheld. But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an 'undue burden' by raising the cost of gun production, ownership and sale – would likely be found unconstitutional."

As a partisan Democrat, I confess to being relieved that the dissenters did not prevail, for the upholding of the D.C. ordinance would, in effect, have served as a massive in-kind campaign contribution to John McCain.

Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children. One sudders at the prospect of Sen. McCain, or some 527group, saying the current Court both wants to protect child rapists and prevent parents from possessing handguns to defend themselves and their children against such marauders. Now all that Sen. McCain can say is that “only one vote” stands between the protection of gun rights and the ability of the state to “take away your guns.”

And he can't stand the historical analysis:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory....

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues.

Yes, this is the convention, unfortunately, and it prevails among many commentators too.

In a radical break from 70 years of Supreme Court precedent, Justice Antonin Scalia, writing for the majority, declared that the Second Amendment guarantees individuals the right to bear arms for nonmilitary uses, even though the amendment clearly links the right to service in a “militia.” The ruling will give gun-rights advocates a powerful new legal tool to try to strike down gun-control laws across the nation.

This is a decision that will cost innocent lives, cause immeasurable pain and suffering and turn America into a more dangerous country. It will also diminish our standing in the world, sending yet another message that the United States values gun rights over human life.

See what I mean? The Times goes on to say:

Senator John McCain has said he would appoint justices like Chief Justice John Roberts and Justice Samuel Alito — both of whom supported this decision. If the court is allowed to tip even further to the far right, there will be even more damage done to the rights and the safety of Americans.

But, of course, Barack Obama said the Court got the case right. How then does the perceived wrongness of the case cut against McCain? The Times is conceding a point about Obama that he might not want to concede! It is assuming that, whatever he says about the case, he will appoint the kind of Justice who would have decided it the other way.

4. There is an immense amount of great commentary at Volokh Conspiracy: Randy Barnett ("I believe Justice Scalia signaled that regulations short of a ban should be scrutinized the way we do 'time, place, and manner' regulations of speech when he equated the Second Amendment with the First..."), Jim Lindgren (on whether the Court created a "new right"), Orin Kerr (noting that Justice Breyer "tak[es] different approaches depending on which side of the culture wars the challenged law happens to fall"), Ilya Somin (warning that "judicial recognition of a constitutional right is only the beginning of the struggle to provide genuinely effective protection for that right"), Dale Carpenter (making 7 points about the case), Eugene Volokh (noting that academic scholarship really mattered, but not as much as who appoints the Justices).

54 comments:

I bet you my right nut he didn't say that or feel that way about Kennedy's 70 page ramble on the Boumediene case.

And he can't stand the historical analysis:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,"

Kennedy who referred to an "unpublished" paper....

which means it wasn't even fully vetted.

Sorry for going off on a tangent and I have to go off to a change of command.

I thought the call-in show was very well done this morning. It's better than the shows when they talk about the economy and you just say you're not an economist.

The decision seems sensible to me. I could ask how a militia can have size of 1, but if an entire neighborhood has guns in their house (I doubt mine does), well, then that collection of ones is a militia.

I think the majority got it right, even though I would prefer fewer guns out there. We're a gun culture, we love 'em; we love westerns and shoot-em ups. You just can't wring that out of us either by legislative statute or judicial fiat. We are what we are, for better or worse. Maybe we can use the time on other issues now.

but if an entire neighborhood has guns in their house (I doubt mine does), well, then that collection of ones is a militia.

The problem with the militia argument is that people just owning handguns or rifles would not make an effective militia in the modern era. If the original intent of the 2nd Amendment is the right to establish a milita as protection against a standing army (as Stevens argues), then such a militia needs modern weapons to be effective. Therefore, under Steven's view, we should have the right not just to own guns for the milita, but also to own machine guns, anti-aircraft missiles, etc... Stevens would only need to examine the war in Iraq to figure out what weapons a milita needs to put up a fight against the United States Federal army.

You just can't wring that out of us either by legislative statute or judicial fiat. We are what we are, for better or worse. Maybe we can use the time on other issues now.

Except that Breyer's opinion makes it clear that he and other liberals view rights in a changing environment, meaning that your rights will never be safe. Because liberals like Justice Breyer perfer to weigh basic rights against interest, he may decide in the future that your right to speak freely about climate change is outweighed in his mind by the threat of climate change to the planet. This is no joke, the liberals on the bench are the worst enemies to liberty in America.

Levison: Just imagine what might happen if Justice Kennedy had joined his more moderate colleagues, as he did just the day before in providing the all-important fifth vote to invalidate the death penalty for rapists of children.

So Ginsburg, Stevens. Souter and Breyer are the "moderates"? Good grief!

AA:whatever he says about the case, he will appoint the kind of Justice who would have decided it the other way.

It might be tempting to say Obama values the overall benefit of the type of Justice he would appoint, more than the specific 2nd Amendment issue decided here, but the reality is he's just saying he agreed with the decision because he knows most Americans do.

First let's get the nomenclature correct. We refer to weapons in the home as "Defensive Tools" and train accordingly. The next point to be discussed pertains to the data available regarding violent crime in states where 2nd ammendment rights favor individual protection. Criminals feel safer and operate with a feeling of impunity if they know their victims are unarmed. Make them think twice.

As a veteran, I was trained in the use of weapons. Any interpretation of militia should always have included active, reserve, and veterans if they were inclined to arm themselves. Current rules forbid weapons to felons, spousal abuse situations, mentally incompetent, and other special circumstances. That is as it should be.

The NRA and other similar institutions need to be proactive in pursuing cases across the U.S. where the usual footdragging and judicial lethargy will set in. Interesting that most states where CCW (Carry Concealed Weapons) permits are opposed with onerous conditions are in predominantly liberal states. Those states should be the low-hanging fruit gone after first as a result of this decision.

Crime will go down as properly trained citizens take control of their security situation.

The next point to be discussed pertains to the data available regarding violent crime in states where 2nd ammendment rights favor individual protection. Criminals feel safer and operate with a feeling of impunity if they know their victims are unarmed. Make them think twice.

There is simply no data to support this. The crime and murder rates in Houston, Dallas, and Chicago are practically the same although the first two have practically no gun control laws while Chicago's are among the most restrictive. New York, which also has very restrictive gun control laws, is one of the safest cities in the country, as is Honolulu, which is in the state with the most restrictive statewide gun control laws. New Orleans, which is awash in guns, has the highest murder rate in the country by far.

As far as statewide crime rates go. Those states that have the most lax gun laws tend to have the highest violent crime rates.

Barnett says "But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an 'undue burden' by raising the cost of gun production, ownership and sale – would likely be found unconstitutional"

Has the Court found similar issues with laws affecting tobacco production and sale unconstitutional?

If say, Oregon were to pass a ban on handguns, and the Court ruled to overturn it, how is that not Judicial Activism?

"Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues."

What he's complaining about, in the end, isn't some unfortunate personal quirk about those justices. That "tone of sublime confidence" isn't "what is worst about Supreme Court rhetoric." Instead, it's inevitable given the vagueness and underdetermined quality of any Constitutional argument of any significance, combined with the Court's anti-democratic role in having to decide such things. The underlying conceit in all of these cases is that the Constitution answers the policy question; the Court is not imposing its value judgments but instead is just "applying" the Constitution impartially.

The fiction (in Heller or Boumedienne or Davis or Kennedy v. Louisiana or ...) that the Court's judgment was merely applying, in an impartial and objective way, the commands of the Constitution is essential to the Court's institutional role. With that fiction comes the Olympian tone of certitude that Prof. Levinson finds so irksome. Put another way, if the Court said that its judgments in constitutional cases were ultimately grounded in the policy preferences and value judgments of five old men, answerable only to themselves, how long could the Court as an institution last?

One doesn't even really need to be judicial conservative (to use an overly broad term to cover textualists, originalists, and the various other kinds of ist's that generally align themselves with Thomas and Scalia) to support Heller.

A judicial philosophy concerned with maximizing individual rights within the framework of an established social order, something I understand most liberals say they are for, would rule the same way as Scalia, albeit for different reasons.

Should I ever write an editorial, I promise not to use the weasel word "immeasurable." I believe the editors of The Times meant to give the impression that the pain caused by the decision was immeasurable like the number of grains of sand on the beach. In reality-- depending on whose social science you choose to believe--the net cost or benefit, in terms of public health of gun control, is immeasurably small (and might well be negative).

I also promise to never use the word "significant" to conflate statistically significant (discernible from noise) with the common usage of significant (a big deal).

Speaking of comedy, that NY Times editorial would be quite amusing, if it wasn't another depressing example of the deplorable state of journalism today. To think the NY Times was once the shining beacon of news sources.

Here's an opportunity to fess up, Althouse. Do you share your self-applied label of "moderate" with Levinson's as applied to the Court? Apparently his view of the middle of the political spectrum is somewhere around Ginsburg. Say it isn't so, and he is just using the tired old leftist radical trick of hijacking a perfectly good descriptor for propaganda purposes - maintenance of his personal delusions included.

As an exclusive service to Althouse blog commentors, I put together some data regarding violent crime rates and gun control laws using Google's (very cool) "motion chart" gadget. I took state violent crime rates from here and used the Brady campaign's scorecard of state gun laws from here. The result is here for you to play with. Select a violent crime rate for the vertical axis and the gun law score for the horizontal axis to see if Freder's statement is convincing. Have fun!

But more extreme or merely symbolic laws that are sometimes proposed – whose aim is to impose an 'undue burden' by raising the cost of gun production, ownership and sale – would likely be found unconstitutional."

This is good news for us in California in light of this retarded proposal to stamp serial numbers on ammunition. A technology that wouldn't exist for already owned guns and would create an "undue burden" on future gun owners and would greatly increase the cost of gun production.

I'm really disturbed that there are four Justices on the Court who believe that a clearly stated right of the people under the Constitution is not in fact a right, while at the same time believing that a number of Constitutional rights exist even though not expressly stated.

Indeed! And not just a militia, but a "well regulated" one at that. Where does the Big C establish the controlling regulatory agency?

Even if the term "well-regulated" was meant in the sense of "subject to outside regulation" -- which it wasn't -- it doesn't follow that regulation is supposed to be done by the government. Private militias can operate under private regulations, too.

I think crime statistics are useful, but not in determining what the Second Amendment means. Does that make me an "originalist"?

I admit I haven't read the decision, but I understand the majority opinion appeals to an "ancient" right, preceding the Constitution, and also refers to a natural right.

To me, that has always been the strongest argument against gun laws; if they prevent you from providing meaningfully and effectively for your own defense--or compel you to choose between a reasonable effort of self-defense and obeying the law -- then they are therefore unjust laws.

The counter arguments so often are to tut-tut, oh, don't be so macho, you don't need such a big gun, call the police...

And when police don't come soon enough, then it's tut-tut about the tragedy of underlying causes, and lack of funding, structural racism and so forth. All cold consolation to the dead person and his grieving loved ones.

If someone is coming at me to hurt me...I have the right to fight back; and it seems really strange to argue that the individual facing the peril should yield on this matter to the judgment of the legislature: you only think you need a gun, when the criminals have guns; in fact, you really don't, trust us!"

That may not be what the really smart people say, but that is what most normal people understand. Obama seems to get that too.

Finally, is it just me, or do those who really, really object to this outcome seem to be arguing an their own sort of textualism, even at the expense of the obvious natural right at stake here?

I.e., aren't folks like E.J. Dionne basically arguing, that as text of the constitution fails to protect your natural right to self-defense, so much the worse for your natural right.

Is that really a position of "liberal" or "living constitution" or "progressive" jurisprudence"? Measure Griswold and Roe by that ruler, and tell me what's left.

That's actually a very important question, and one that leftists have no answer for except to bash the questioner. IMHO, it has much to do with personal life views and choices of 'models' on which are based fundamental concepts of "right" and "wrong". For 4.5 SCOTUS judges, and all too many others today, the model is not the United States as originally envisioned and Judaeo-Christian morality and ethics.

Deviant leftist conditioning begins early in life and is continually reinforced by "progressive" educators and media, a program common to all socialist states. So a quiet war is being waged, and I'm not sure the good guys are winning. For traditional conservatives, it's a sickening situation.

No matter how one feels about gun rights, I think it would be hard to disagree the 2nd A is a bit of a mess. Both sides of the issue have to agree on that, at least.

I don't. I think "the right of the people to keep and bear arms shall not be infringed" is pretty damn clear. I fault the Founders only for being naive to the extent which men can effectively lie to get what they want.

I think part of the problem is that, up to that point, the main source of denying people rights was a supposedly divinely-empowered nobility. I'm not sure they realized how easy it would be in an era of mass media to train people to believe that they themselves were less trustworthy than a remote, centralized power.

In any event, I suppose they should have provided footnotes defining all the words they used, in the face of changing definitions.

Of course, keep in mind that when Sloan says:

The problem with the militia argument is that people just owning handguns or rifles would not make an effective militia in the modern era.

I don't see that as a problem. People should be allowed, and probably encouraged to at least be familiar with heavier firepower.

If left-wingers object to this, it should be noted that were we primarily defended by various private citizens, it would be much harder for us to project our power abroad. And they seem to hate that, at least when a Rep does it.

Indeed! And not just a militia, but a "well regulated" one at that.

The meaning of the phrase "well regulated" was, roughly, "functioning" or "adequate to the task". A fine watch would be considered "well regulated". Also, just about everyone who could fight was considered part of the militia. Someone here said 45 was the upper limit, but I've heard 60 elsewhere. (We could add women and septuagenarians. Look! A "living Constitution!")

Where does the Big C establish the controlling regulatory agency? Who's going to pick up that baton and run with it?

Nobody, because that's precisely not what it meant.

70 years ago, the understood meaning was radically distorted to increase the power of the state. And very effectively so.

Implicit in the NYT's lament about 70 years ago is the unspoken "70 years ago, radical justices broke with 130--no, 230 years of American and English tradition--by denying the basic right of the average citizen to bear arms in defense of himself and his country.

But, hey, that's just my opinion. I guess I just see a lot less room for nuance in the Bill of Rights than most people. Hell, I sort of thought that was the freakin' point of it: To be extreme in the defense of liberty.

I don't. I think "the right of the people to keep and bear arms shall not be infringed" is pretty damn clear.

Yep. Nothing in the English language indicates that the militia clause is a limitation on the "shall not be infringed" command. It is merely an explanation -- and not necessarily a complete explanation -- of WHY the command is being given.

"I don't. I think "the right of the people to keep and bear arms shall not be infringed" is pretty damn clear. I fault the Founders only for being naive to the extent which men can effectively lie to get what they want."

Well if it is so clear then you must be pretty upset with Scalia.

After all, he pussied out when it really comes to the "shall not be infringed part".

Let's see:

Individual right - yeah.

Still allowing various levels of various governments to enact many levels of registration, licensing, taxation, prohibition, etc. - still sounds like infringement to me.

Still allowing various levels of various governments to enact many levels of registration, licensing, taxation, prohibition, etc. - still sounds like infringement to me.

It doesn't to me. The government does the same thing with the rights to free speech, freedom of the press, and freedom of assembly, and always has. Scalia made it pretty clear that the court would take the same view on anti-gun laws that it takes on anti-speech laws.

Freder, I guess you think that Vermont (with essentially no gun laws, even concealed carry is allowed without permit) is more dangerous than Michigan or New York or Illinois?

Tell you what: You wander around Detroit or the Chicago south side with a rolex and a pocket full of cash, and I'll wander around Montpelier.

We'll see who is left to blog about it.

And as far as Professor Levinsons historical scholarship, he'd be better off not relying on Carl Bogus (appropriately named) or the notorious liar Beliles (sp?). Logic like Levinson's is embarassing...not the Second Amendment.

Hey all -- Levinson's one of the good guys. He was writing about the Second Amendment when most scholars had written it out of the Constitution. His was one of the seminal articles that helped shape what is now called the Standard Model of a Second Amendment that secures an individual right. Note he was able to publish it in the most prestigious law review in the United States, where the collective rights crowd had to pay attention. All of us who believe in gun rights are in his debt. Let's give him the respect he deserves.

"Freder, I guess you think that Vermont (with essentially no gun laws, even concealed carry is allowed without permit) is more dangerous than Michigan or New York or Illinois?"

"Tell you what: You wander around Detroit or the Chicago south side with a rolex and a pocket full of cash, and I'll wander around Montpelier."

And do you REALLY believe that Vermont's gun laws are the key deciding factor in this?

There can't possibly be a lot more complicated sociologic/demographic/economic factors involved right?

So is Vermont crime free?

Just a quick look shows that Vermont has seen their murder rate per 100K go from 0.3 in 1960 to 1.9 in 2006. Zowie - that's one hell of a shocking increase. What is that 6 times as much?

I couldn't easily find rates for just Detroit but Michigan only saw their rate go from 4.5 to 7.1 for the same period. What is that - not even 2 times as much?

How do you explain such a huge increase in the rate in Vermont?

Couldn't be because everyone is packing heat could it? Or is it likely Vermont is starting to experience some of the other social stresses that other much more densely populated areas have experienced for far longer?

How does Vermonts murder rate compare to say Japan?

Japan - where I lived for many years and practically nobody owns a gun (and has population densities most Vermonters just can't imagine) has a murder rate of 1.1 per 100K or about half of Vermonts rate.

Golly, I guess there is a lot more to this stuff than just gun laws eh!!

Yep - most of the time wingnuts call that sort of thing "judicial activism" or "legislating from the bench". Funny tho how when it is a decision they want and agree with then it's neither.

Far be it from me to speak for the "wingnuts", but if this "sort of thing" means "doing what the Constitution and Bill of Rights says", then, yeah, I don't consider that judicial activism.

I wish the "moonbats" would get going on all those Constitutional rights they claim are their prize issues, but instead what I see is years of bitching about executive power when they're not in the White House, then nothing when they actually get in to the White House.

I'm just glad the "wingnuts" could take some precious time from trying to put pornographers in jail to do something, you know, actually Constitutional.

This would be the same Breyer that agreed with expanding the definition of "cruel & unusual punishment" to "punishment a majority of the SC doesn't like", and the power of the court to reach out to foreign persons in foreign territories in defiance of the executive and legislative?